Hostility Of Panch Witnesses No Ground To Discard Recovery If IO's Testimony Is Convincing: Supreme Court

"Merely on account of the panch witnesses turning hostile cannot be a ground to discard this important piece of evidence, if the recovery is proved through the investigating officer." Supreme Court, in a significant ruling dated May 25, 2026, held that a recovery of incriminating material under Section 27 of the Indian Evidence Act, 1872, cannot be discarded solely because independent witnesses (panch witnesses) turned hostile.

A bench of Justice Pankaj Mithal and Justice Prasanna B. Varale observed that the evidence of the person who effected the recovery—the Investigating Officer—can be relied upon if it is found to be convincing and credible.

The case pertains to the gruesome murder of four members of a family in Satna, Madhya Pradesh, in July 2002. The appellant, Upendra Khare, along with other co-accused, was charged with the murder of Rajesh Shukla, his wife, son, and sister. The Trial Court convicted the appellant under Section 302 read with Section 149 of the IPC, which was subsequently upheld by the High Court of Madhya Pradesh.

The primary question before the Court was whether the recovery of incriminating articles at the instance of the accused is admissible when the independent witnesses to the seizure have turned hostile. The Court was also called upon to determine if a "faulty investigation" by the agency is sufficient grounds to discard otherwise credible material evidence.

Hostility Of Independent Witnesses Does Not Vitiate Recovery

The Court addressed the appellant’s primary contention that the recovery of injection phials, clothes, and a rope should be discarded as the independent witnesses turned hostile. The bench noted that it is a settled principle that the evidence of the Investigating Officer (IO) is not rendered inadmissible merely due to the lack of support from panch witnesses.

The bench emphasized that in many criminal cases, independent witnesses often turn hostile, but this does not automatically invalidate the recovery. "We are unable to accept this submission for the simple reason that this Court had consistently taken a view that merely on account of the panch witnesses turning hostile cannot be a ground to discard this important piece of evidence," the Court noted.

"The evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version."

Reliability Of Investigating Officer's Testimony

Reiterating the ratio in Rameshbhai Mohanbhai Koli v. State of Gujarat, the Court held that if the testimony of the IO who recovered the material objects is convincing, it can be the basis for conviction. In the present case, the Court found the testimony of the Investigating Officer, Arun Singh (PW-24), to be reliable and properly connected to the recovery of the articles from the appellant.

The Court further referred to Anter Singh v. State of Rajasthan, reminding that Section 27 of the Evidence Act allows the discovery of a fact in consequence of information received from an accused in custody. If that information relates distinctly to the fact discovered, it is admissible regardless of whether the seizure witnesses stand by their statements in court.

"Even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."

Impact of Faulty Investigation on Conviction

The appellant had also argued that the investigation was "faulty" and "not up to the mark," a point previously noted by the lower courts. However, the Supreme Court held that while the investigating agency should have acted with more sensitivity given the loss of four lives, a subpar investigation cannot be a reason to discard other material evidence.

The bench observed that the recovery of the injection phials at the instance of the appellant was corroborated by the post-mortem report. The medical evidence proved that the deceased persons were administered "calmpose" (diazepam) before being killed with sharp weapons. This synergy between the recovery and the medical findings was sufficient to sustain the conviction.

"Merely the fact that the investigation was not up to the mark cannot be the reason for this Court to discard the other material evidence brought by the prosecution in support of its case."

Legal Requirement For Unlawful Assembly

Regarding the contention that the conviction under Section 302/149 IPC was unsustainable because the total number of persons convicted was less than five, the Court maintained the conviction. It noted that the initial charge-sheet involved multiple accused persons, some of whom were absconding, thereby satisfying the legal requirement for "unlawful assembly" at the time of the commission of the offence.

The Supreme Court concluded that the judgments of the Trial Court and the High Court were based on a "just and proper appreciation of evidence." Finding no reason to interfere with the concurrent findings of the lower courts, the bench dismissed the appeal. The conviction of the appellant for the quadruple murder was thus upheld.

Date of Decision: May 25, 2026